Expanding the Statute of Limitations for Sexual Assaults

After nearly twenty years of discussed reform, in May of 2019, New Jersey Governor Phil Murphy signed S477/A3648, a bill allowing the victims of sexual assault more time in which to file lawsuits against their abusers.  The bill had previously passed almost unanimously in the State Assembly and Senate before being signed by Governor Murphy and coming into effect on December 1, 2019.  The purpose of the legislation was to expand the current two-year statute of limitations for sexual assault cases to seven years in a majority of cases.  Additionally, the law allows adults who were victims of sexual assault as children the ability to file lawsuits against individuals or institutions, even non-profits, until either the age of fifty-five or until seven years after they “discover” that they have suffered emotional and psychological injuries stemming from their abuse, whichever is later.  Lastly sexual assault victims whose statute of limitations had previously tolled are granted a supplementary two-years in which to file suit. 

This bill was originally proposed following New Jersey’s five Roman Catholic diocese disclosure of approximately two hundred priests accused of sexual abuse.  Moreover, the Boy Scouts of America released a list of approximately fifty former leaders accused of sexual violence against children.   As such, on the first day in which the law came into effect over fifty civil suits were filed against the Catholic Church of New Jersey, the Boy Scouts of America, and other organizations for sexual assault claims dating back decades.   

New Jersey has followed a nationwide trend of states evaluating and reforming their statutes of limitations for sexual assault cases as they work to comprehend the effect of the related trauma and delayed reporting associated with such cases.   In fact, prior to Governor Murphy’s signing of the bill, over eighty percent of states had already altered their statutes of limitations for sexual abuse since 2002.     

This expansion of the statute of limitations and grace period for those whose statute of limitations had already tolled will remarkably increase the amount of sexual assault cases filed throughout New Jersey.  As such, insurers of these entities must be on notice that not only will there be a marked increase in claims, but that claims for which statutes of limitations had tolled and cases have been closed can now be reopened and brought to suit.

Spoliation: Defined and Confined

Recently, a client contacted us regarding an alleged automobile-pedestrian accident which occurred outside of a well-known resort in Florida. Plaintiff, an employee of the resort, brought a lawsuit against our client alleging, amongst other things, negligence. Specifically, Plaintiff claimed that he was pinned between the resort’s golf cart and our client’s vehicle. As a standard measure, we sent a preservation of evidence letter to the resort demanding preservation of surveillance and the golf cart. The resort responded that it had no duty to preserve any evidence.  

 Last month, in Pena v. Bi-Lo Holdings, LLC, a Florida appellate court reviewed a trial court’s decision, wherein it denied the plaintiff’s motion for an adverse inference jury instruction based upon the defendants’ alleged spoliation of evidence. 45 Fla. L.W. D506a (Fla. 3rd DCA 2020) Ultimately, the appellate court affirmed the trial court’s decision. At issue, was a broken bag of rice which plaintiff claimed to have slipped on spilled out grains on the floor of defendant’s supermarket. Prior to filing suit, plaintiff made a preservation demand for surveillance footage but not for the bag of rice. Although defendant failed to preserve the rice, the court found no spoliation. 

“Spoliation [. . .] is a cause of action which holds someone liable for negligently or intentionally destroying material which is needed as evidence in litigation.” See Rockenbach, Spoliation of Evidence: A Double-Edged Sword, Fla. B.J., Nov. 2001, at 34. Although seemingly spelled out in its definition, spoliation has limits and restraints on its scope and applicability. In Pena v. Bi-Lo Holdings, LLC, the court analyzed the standard for assessing spoliation, which includes “[. . .] a three-part threshold inquiry: ‘1) whether the evidence existed at one time, 2) whether the spoliater had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.’” Pena citing Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) [31 Fla. L.W. D494a] In review, the court found that 1) the bag of rice existed; 2) defendants had a duty, pursuant to established case law, to preserve all relevant evidence upon notice of potential litigation; and 3) the bag of rice was not critical to plaintiff’s ability to prove its case. Therefore, it found plaintiff’s claim for spoliation unsupported.  

Nevertheless, the court entertained that even if plaintiff had established spoliation, she would have failed to establish any arguable right to an adverse inference. “‘[W]hen a party fails to preserve evidence in its custody [the appropriate sanction] depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice.’” Id citing Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DC1995). The court found no willfulness or bad faith in defendants’ failure to preserve the bag of rice. Further, it found plaintiff was not prejudiced.  

This case serves as a necessary reminder of the limits on the scope of a spoliation cause of action. Further, it outlines the burden a party must prove in order for a court to consider the serious award of an adverse jury instruction. In the case of the resort, it is clear that defendants’ preservation demand to the resort has established a duty for the resort to preserve all relevant evidence for the pending litigation. However, an award of an adverse inference later sought by the defendants will remain constrained by the burden of proving the three-part threshold and the appropriate sanctions standard set forth in Pena v. Bi-Lo Holdings, LLC.  

Deposition Appearance: Mandatory or Flexible in New York Federal Courts?

It is well established under Federal law that appearance at a deposition is mandatory, especially after a notice of deposition and/or subpoena. However, in light of the recent outbreak of the coronavirus, it is certainly possible that plaintiffs and possibly other witnesses, may not want to appear at their scheduled in-person deposition. Instead, individuals may want to alter the venue of the deposition and may want to appear via videoconference. Rule 30(b)(4) of the Federal Rules of Civil Procedure provides that a court on motion may order that a deposition be taken “by telephone or other remote means.”  

However, under New York Federal Law, significant discretion is given to determine the site of a deposition and as a general rule, a plaintiff is required to make themselves available for a deposition in the forum where the suit was brought. "Holding a deposition by videoconference is 'frequently a preferred solution to mitigate the burden of a deposition location inconvenient to one or both sides.'" See Alpha Capital Anstalt v. Real Goods Solar, Inc., 323 F.R.D. 179 (S.D.N.Y. 2017). Moreover, Federal Courts have asserted that a video-deposition has minimal prejudice in terms of observing the witness’ behavior or demeanor. 

In Packard v. City of NY, the Court was faced with a similar dilemma where the plaintiff brought the suit in New York, as a New York resident. However, the plaintiff subsequently moved to Taiwan and objected to his deposition location in New York due to his new domicile. As a result, both parties reached an impasse and it was ordered by the Federal Court that a video-deposition was acceptable as long as plaintiff made all necessary arrangements for having his deposition taken in Taiwan and that plaintiff shall bear the additional expenses incurred due to the new deposition venue. Packard v. City of NY, 326 FRD 66 [S.D.N.Y 2018]. 

Given the recent eruption of the coronavirus in the United States, it is noteworthy that video-depositions are equally sufficient as in-person depositions during a chaotic time, as witnessed presently. It is conceivable that courts on the Federal and State level will liberally permit non-appearances and/or rescheduling of in-person depositions to video-depositions due to the aforementioned reasons. As such, we should anticipate that opposing counsel will attempt to schedule video-depositions of plaintiff during the present coronavirus outbreak in place of in-person depositions. However, due to the fact that a witness’ in-person deposition demeanor/behavior is critical to determine the truthfulness and veracity of any alleged claims, we may resist any video-deposition proposal or handle on a case by case basis.  

Doctrines of Remittitur & Additur: A Change Encouraging Settlement the Second Time Around

The Doctrines of Remittitur and Additur have been well-establish principles in New Jersey law since 1917; allowing a court to either reduce (remittitur) or increase (additur) an award for damages which it found to have “shocked the judicial conscience” based on the evidence presented at trial.

 In a recent New Jersey Supreme Court case, Orientale v. Jennings, __ N.J. __ (2019), the Court altered the remittitur and additur principles, shifting the perceptions of a bias towards a plaintiff or defendant. The Court held when a jury’s award for damages is grossly excessive or utterly inadequate, a new trial for damages should be afforded to the parties; however, the Court converted remittitur and additur to be alternatives so long as both parties consent to a court fixing a specific damages award that a reasonable jury would have awarded. 

 In Orientale, the plaintiff settled her underlying claim for injuries sustained in a car accident for $100,000. Plaintiff maintained an underinsured motorist policy through Allstate, covering up to $250,000. Plaintiff asserted a claim against Allstate for injuries exceeding the settlement. After trial, a jury returned a verdict of $200 against Allstate but since it did not exceed the settlement, the judge entered a no-cause verdict. Finding the verdict utterly inadequate the court, under additur, raised it to $47,500, which was the lowest award proven during trial; nevertheless, the altered amount still resulted in a no-cause verdict in favor of Allstate. The Court granted review of the remittitur and additur, reviewing the law from early common law where additur did not exist and remittitur did not resemble the principles of today, through today’s current laws. The Court found the current use of remittitur and additur were incongruent with the principles of Rule 4:35-1(a) which allows a party to send any triable issues to a jury unless all parties consent to a bench trial. The Court preserved the principles of remittitur and additur by altering them into a choice where both parties must consent to the alteration, whether an increase or a reduction, for it to be binding. 

 The Court provided that trial courts when determining the proper amount for remittitur or additur of a verdict that shocks the judicial conscience, must attempt the difficult task of determining the amount that a reasonable jury, properly instructed, would have awarded. Orientale, (slip op. at 31). This judicially determined amount does not usurp the role of a jury, especially since all parties must consent to the changed amount, but it is to be viewed as a reasonable amount based upon adduced evidence to encourage a settlement. Still, should the parties not agree to the court’s fixed amount, the parties would be afforded a new trial on damages.

 From a defense perspective, Orientale teaches the following: first, this change in the application of remittitur and additur where both sides must agree to the change, is a judicial authority informing a difficult plaintiff how much his case is worth thereby encouraging a settlement; and second, this change gives the defense an advantage should a jury award an astronomically high verdict, a court can reduce the amount to a reasonable sum or allow the parties to have a new trial on damages for a more reasonable determination on a plaintiff’s damages. 

Who Watches the Watchmen? First Department Rules that IME Observer Notes are Not Generally Discoverable

The First Department of the New York Supreme Court Appellate Division recently ruled that notes and reports by IME “watchdogs” hired by plaintiffs’ attorneys generally are not discoverable by defendants.  In the recent case of Markel v. Pure Power Boot Camp, 96 N.Y.S.3d 187 (1st Dept. 2019), the plaintiff alleged that she injured her knee while participating in a drill at a “boot camp” style gym. During the course of the litigation, the defense designated an orthopedic surgery expert to perform a physical examination of the plaintiff. Plaintiff’s counsel hired an “observer” from IME Watchdog, a company that claims to assist in preventing IME physicians from asking inappropriate questions and administering inappropriate tests and in reporting any errors or lapses made by the examining physician. The observer accompanied plaintiff to the defense’s physical examination. Following the examination, defendants served a subpoena upon IME Watchdog seeking the notes and reports made by the observer, and plaintiff’s counsel filed a motion to quash the subpoena in response. The trial court ruled in favor of the defense, leading to an appeal by plaintiff.

In reversing the trial court’s decision and holding that the observer’s notes were not discoverable, the Court reiterated well-accepted legal authority in New York that plaintiffs are entitled to have a representative of their choice present at defense physical examinations. The Court further noted that independent observers hired by plaintiff’s attorneys are essentially agents of those attorneys. Therefore, their notes and reports are considered trial preparation materials, which are protected by a conditional privilege. Given this, defendants may only obtain such notes or reports upon a showing that they have a substantial need for those documents and that a substantial equivalent cannot be obtained by other means. The Court further held that since defense counsel has access to the physician who performed the examination, the information contained in the observer’s notes/reports should be obtainable from the physicians themselves.

This decision emphasizes the need for defense counsel to forge a productive working relationship with physicians retained to perform physical examinations for the defense. Given this decision, defendants in the First Department can no longer seek to obtain plaintiff’s potential cross-examination material by directly obtaining a copy of a third-party IME observer’s notes or reports. Therefore, it is important that defense counsel speak with their retained physicians about the manner in which the examination was conducted as well as any individuals other than plaintiff who attended. By doing so, defense counsel can have greater confidence that plaintiff’s potential areas of cross-examination for the defense’s physical examination physician at trial are limited or eliminated.

Clarification On Calculating “Judgment Obtained” Under Florida’s Proposal For Settlement/Offer Of Judgment Rules

Florida’s Proposal for Settlement and Offer of Judgment rules are delineated in Fla. Stat. § 786.79 and Fla. R. Civ. P. 1.442.  See Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 852 (Fla. 2016); see also Wilcox v. Neville, No. 1D18-4057, 2019 Fla. App. LEXIS 16394, at *5 (Fla. 1st DCA 2019).  An offer that complies with these provisions creates a mandatory right to collect attorney’s fees, unless the offer is made in bad faith. Furthermore, if plaintiff serves an offer which is not accepted by defendant, and the judgment obtained by plaintiff is at least 25 percent more than the offer, plaintiff shall be awarded reasonable costs and attorney’s fees.  “Judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.  A party’s entitlement to fees depends on the judgment obtained, not the jury’s verdict, and that entitlement is for postoffer attorney’s fees and costs. Most parties in Florida get confused as to the divergent interpretation of the phrase “postoffer settlement” and “postoffer” in Fla. Stat. § 768.79(6) because the Legislature did not define said terms.

 The plaintiff in Wilcox v. Neville, initially filed a complaint against two defendants: the driver and the owner of the defendants’ motor vehicle. On May 2, 2017, Plaintiff filed a notice of serving a Proposal for Settlement (“PFS”) as to each defendant for $89,600 to the driver and $60,400 to the owner.  So, in order for plaintiff to be entitled to attorney’s fees and costs, the judgment obtained by plaintiff as to her PFS directed toward defendant driver must exceed $112,000 (25 percent more than the $89,600 offer). On May 17, 2017, defendant owner timely filed a notice of acceptance of plaintiff’s PFS to resolve his claim for $60,400, and plaintiff dismissed her claim against him.  Defendant driver allowed his PFS to expire and the parties proceeded to trial.  The jury returned a verdict in plaintiff’s favor in the amount of $126,592.33, and the district court denied plaintiff’s motion for attorney’s fees and costs because the verdict was reduced to $58,865.73 due to agreed-to set-offs, such as PIP benefits received by plaintiff; the trial court ruled that the defendant owner’s timely acceptance of plaintiff’s PFS was not a postoffer settlement because if it were, said interpretation would eliminate the statutory requirement that every offer remain open for consideration for a full thirty days.  The parties disagreed about plaintiff’s entitlement to attorney’s fees based on the divergent interpretation of the phase “postoffer settlement” in Fla. Stat. § 768.79(6).  Precisely, the dispositive issue to be resolved was whether defendant owner’s acceptance of plaintiff’s proposal for settlement constituted a “postoffer settlement” that should have been added to the net judgment ($58,865.73).  The First District Court of Appeals answered in the affirmative, that said acceptance should be added to the net judgment.

 In Wilcox, the First District Court of Appeals ruled that the plain meaning of “postoffer” means, “to be after the offer; that is, after the act of presenting something for acceptance or displaying a willingness to enter into a contract on specified terms.”  No. 1D18-4057 at 7. Furthermore, the First District Court of Appeals defined “postoffer settlement” as a “settlement reached any time after the service of the offer.” The appellate court ruled that a co-defendant’s independent acceptance of an offer has no bearing on the defendant’s acceptance period, and therefore, Fla. Stat. § 768.79(6) requires the judgment obtained to include the amount of any settlement by a co-defendant after the date of service of the offer on the defendant by which the verdict was reduced.  For example, if there are two defendants, and defendant 1 is served with a proposal for settlement that is rejected through lapse of time (30 days), and subsequently defendant 2 settles, that amount of settlement will be included in the net judgment, or judgment obtained, for purposes of determining whether or not plaintiff would be entitled to attorney’s fees and costs pursuant to Fla. Stat. § 786.79 and Fla. R. Civ. P. 1.442.